(Air transport— Regulation (EC) No261/2004

JUDGMENT OF THE COURT (Eighth Chamber)

17March 2016 (*)

(Air transport— Regulation (EC) No261/2004— Article7— Compensation payable to passengers in the event that their flight is cancelled or delayed by more than three hours— Article16— National bodies responsible for the enforcement of the regulation— Powers— Adoption of enforcement measures against the air carrier for payment of the compensation due to the passenger)

In Joined Cases C‑145/15 and C‑146/15,

REQUESTS for a preliminary ruling under Article267 TFEU from the Raad van State (Council of State, Netherlands), made by decision of 11March 2015, received at the Court on 26March 2015, in the proceedings

K.Ruijssenaars,

A.Jansen (C‑145/15),

and

J.H.Dees-Erf (C‑146/15)

v

Staatssecretaris van Infrastructuur en Milieu,

intervening parties:

Royal Air Maroc SA (C‑145/15),

Koninklijke Luchtvaart Maatschappij NV (C‑146/15),

THE COURT (Eighth Chamber),

composed of D.Šváby (Rapporteur), President of the Chamber, J.Malenovský and M.Safjan, Judges,

Advocate General: Y.Bot,

Registrar: A.Calot Escobar,

after considering the observations submitted on behalf of:

–K.Ruijssenaars, A.Jansen and J.H.Dees-Erf, by M.Hoorntje, jurist, and F.de Bray, advocaat,

–the Netherlands Government, by M.Gijzen and K.Bulterman, acting as Agents,

–Koninklijke Luchtvaart Maatschappij NV, by P.Eijsvoogel and P.J.F.Huizing, advocate,

–the German Government, by T.Henze and J.Kemper, acting as Agents,

–the Finnish Government, by J.Heliskoski, acting as Agent,

–the European Commission, by F.Wilman and N.Yerrell, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14January 2016,

gives the following

Judgment

1These requests for a preliminary ruling concern the interpretation of Article16 of Regulation (EC) No261/2004 of the European Parliament and of the Council of 11February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No295/91 (OJ 2004 L46, p.1).

2The requests have been made in two sets of proceedings between (i) MrRuijssenaars and MrJansen and (ii) MrsDees-Erf, the applicants in the main proceedings, and the Staatssecretaris van Infrastructuur en Milieu (Secretary of State for Infrastructure and the Environment) (‘the Secretary of State’) concerning the latter’s refusal to take enforcement action against Royal Air Maroc SA (‘Royal Air Maroc’) and Koninklijke Luchtvaart Maatschappij NV (‘KLM’) respectively, in order to oblige those companies to pay the compensation provided for in Article7 of Regulation No261/2004 due to the fact that the flights which they took arrived more than three hours late.

Legal context

EU law

3Recitals 1, 21 and 22 of Regulation No261/2004 state as follows:

‘(1)Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.

…

(21)Member States should lay down rules on sanctions applicable to infringements of the provisions of this Regulation and ensure that these sanctions are applied. The sanctions should be effective, proportionate and dissuasive.

(22)Member States should ensure and supervise general compliance by their air carriers with this Regulation and designate an appropriate body to carry out such enforcement tasks. The supervision should not affect the rights of passengers and air carriers to seek legal redress from courts under procedures of national law.’

4Article5(1) of Regulation No261/2004 provides as follows:

‘1.In case of cancellation of a flight, the passengers concerned shall:

…

(c)have the right to compensation by the operating air carrier in accordance with Article7, unless:

(i)they are informed of the cancellation at least two weeks before the scheduled time of departure; or

(ii)they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or

(iii)they are informed of the cancellation less than seven days before the scheduled time of departure and are offered rerouting, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.

…’

5Article7(1) of Regulation No261/2004, entitled ‘Right to compensation’, provides is follows:

‘1.Where reference is made to this Article, passengers shall receive compensation amounting to:

(a)EUR 250 for all flights of 1500 kilometres or less;

(b)EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres;

(c)EUR 600 for all flights not falling under (a) or (b).

…’

6Article16 of Regulation No261/2004, headed ‘Infringements’, states: as follows

‘1.Each Member State shall designate a body responsible for the enforcement of this Regulation as regards flights from airports situated on its territory and flights from a third country to such airports. Where appropriate, this body shall take the measures necessary to ensure that the rights of passengers are respected. The Member States shall inform the Commission of the body that has been designated in accordance with this paragraph.

2.Without prejudice to Article12, each passenger may complain to any body designated under paragraph1, or to any other competent body designated by a Member State, about an alleged infringement of this Regulation at any airport situated on the territory of a Member State or concerning any flight from a third country to an airport situated on that territory.

3.The sanctions laid down by Member States for infringements of this Regulation shall be effective, proportionate and dissuasive.’

Netherlands law

7Article16 of Regulation No261/2004 was implemented by, inter alia, the following provisions of the Wet luchtvaart (Law on Aviation) of 18June 1992 (Stb.1992, No368), in the version applicable at the material time (‘the Law on Aviation’).

8Under Article11.15(1)(b)(1) of the Law on Aviation, the Secretary of State, designated as the national body responsible for the enforcement of Regulation No261/2004, has the authority to impose, by way of order for coercive administrative action, the obligation to comply with the provisions laid down in the regulation or adopted pursuant thereto.

9According to the Raad van State, referring to the travaux préparatoires for the Law on Aviation, while that law gives the Secretary of State general authority to take enforcement measures in the event of infringement of Regulation No261/2004, especially where an examination of the files discloses a systematic refusal on the part of the air carrier to comply with its obligations under that regulation, it none the less does not permit the Secretary of State to take enforcement measures at the request of a passenger in each individual case in which an air carrier refuses to allow a claim for compensation based on Articles5(1)(c) and 7 of Regulation No261/2004.

The actions in the main proceedings and the questions referred for a preliminary ruling

Case C‑145/15

10Following the cancellation of their flight from Amsterdam (the Netherlands) to Casablanca (Morocco) scheduled for 8April 2011, MrRuijssenaars and MrJansen submitted a claim to Royal Air Maroc for the compensation provided in Article7 of Regulation No261/2004.

11When that claim was refused by that air carrier, they requested the Secretary of State, by letter of 4May 2012, to take enforcement action against Royal Air Maroc with a view to obliging it to remedy the infringement of Article5(1)(c) of Regulation No261/2004 and to pay the compensation provided for in Article7 of the regulation.

12By decision of 7May 2012, the Secretary of State rejected the request submitted by MrRuijssenaars and MrJansen. By decision of 3October 2012, the Secretary of State rejected the complaint lodged by MrRuijssenaars and MrJansen against that decision as unfounded.

13Mr Ruijssenaars and MrJansen then brought proceedings challenging that decision before the Rechtbank Oost-Brabant (District Court, Oost-Brabant), which dismissed their action by decision of 28May 2013.

14Mr Ruijssenaars and MrJansen lodged an appeal against that decision before the Raad van State (Council of State).

15In those appeal proceedings, the referring court is uncertain whether the Secretary of State has authority to take the enforcement action requested by the applicants. It is of the view that, while it is established that the Secretary of State has authority to take enforcement action against air carriers that refuse systematically to comply with their obligations under Regulation No261/2004, that may not be the case with regard to enforcement measures adopted at the request of passengers concerning individual situations involving infringement of Articles5(1)(c) and 7 of the regulation.

16In that regard, the Raad van State considers that the relationship between an air carrier and a passenger is governed by civil law and that, if the air carrier refuses to pay compensation to the passenger, a claim for compensation must be made by way of a civil action before a civil court. The referring court also states that if the adoption of enforcement measures on an individual basis were entrusted to the Secretary of State, whose decisions are subject to review by the administrative courts, that would be liable to undermine the division of judicial functions in the Netherlands if parallel actions were brought before the civil courts.

17Moreover, that the Secretary of State does not have competence to adopt the measures at issue in the main proceedings would appear to be confirmed by the parliamentary documents relating to the Law on Aviation, according to which ‘there is no role for the authorities to claim compensation from an air carrier on behalf of passengers’, and by the fact that the coercive measures provided for by Netherlands law do not, in the event that the air carrier concerned fails to comply with those measures, make provision for compensation for passengers.

18The Raad van State also states that the provisions of Regulation No261/2004 at issue in this case are directly applicable and, therefore, may be relied on before the national courts in disputes between individuals, thus ensuring that passengers have effective judicial protection.

19In those circumstances, the Raad van State decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Given that Netherlands law provides access to the civil courts to protect the rights which passengers may derive under EU law from Article5(1)(c) and Article7 of Regulation No261/2004, does Article16 of that regulation oblige the national authorities to take implementing measures which form the basis for administrative enforcement action through the bodies designated under Article16 separately in each individual case in which Article5(1)(c) and Article7 of the Regulation are infringed, in order to be able to guarantee a passenger’s right to compensation separately in each individual case?’

Case C‑146/15

20As a result of a 26-hour delay of her flight from Curaçao (Netherlands Antilles) to Amsterdam (Netherlands) on 17December 2009, MrsDees-Erf claimed payment from KLM of the compensation provided for in Article7 of Regulation No261/2004.

21As KLM refused MrsDees-Erf’s claim, she requested the Secretary of State, by letter of 1February 2012, to take enforcement action against that air carrier with a view to requiring it to remedy the infringement of Article5(1)(c) of Regulation No261/2004 and to pay to her the compensation provided for in Article7 of the regulation.

22By decision of 2February 2012, the Secretary of State refused MrsDees-Erf’s request. By decision of 22May 2012, the Secretary of State rejected the complaint lodged against that decision as unfounded.

23Mrs Dees-Erf then brought an action challenging that decision before the Rechtbank Den Haag (District Court, The Hague), which dismissed the action by decision of 13February 2013.

24Mrs Dees-Erf lodged an appeal against that decision before the Raad van State.

25On the same grounds as those set out in the request for a preliminary ruling in Case C‑145/15, the Raad van State decided to stay the proceedings and to refer to the Court a question for a preliminary ruling which is identical to that submitted in that case.

26By order of the President of the Court of 27March 2015, Cases C‑145/15 and C‑146/15 were joined for the purposes of the written and oral procedure and the judgment.

Consideration of the question referred

27By its question, the referring court seeks to ascertain, in essence, whether Article16 of Regulation No261/2004 must be interpreted as meaning that, where an individual complaint has been made by a passenger to the body designated by each Member State pursuant to Article16(1) of the regulation following the refusal by an air carrier to pay to the passenger the compensation provided for in Article7(1) of the regulation, that body is required to take enforcement action against the carrier with a view to compelling it to pay the compensation.

28It should be noted in that regard that Article16(1) of Regulation No261/2004 provides that Member States are to designate a body responsible for the enforcement of the regulation which, where appropriate, is to take the measures necessary to ensure that the rights of passengers are respected.

29It is apparent from the wording of Article16(1) of Regulation No261/2004, read in conjunction with recital22 of the regulation, that that provision imposes a duty on the body referred to in those provisions to ensure general compliance with the regulation.

30As the individual components of Article16 of Regulation No261/2004 form a coherent whole, Article16(2) and Article16(3) must be read as specifically identifying the various aspects of the task entrusted to the body referred to in Article16(1).

31In particular, the ‘complaints’ which any passenger may make to that body pursuant to Article16(2) of Regulation No261/2004 are to be regarded as a form of alert signal intended to contribute to the proper application of the regulation in general, without that body being required to act on such complaints in order to guarantee each individual passenger’s right to obtain compensation.

32Next, the term ‘sanction’ as used in Article16(3) of Regulation No261/2004— that provision being read in conjunction recital21 of the regulation— must be interpreted as referring to the measures adopted in response to the infringements which the body identifies in the course of its general monitoring activities provided for in Article16(1), not to administrative enforcement action to be taken in each individual case.

33Accordingly, the interpretation of Article16 of Regulation No261/2004 adopted above as a whole is not liable to undermine the objectives of Regulation No261/2004, in particular the objectives referred to in recital1 of the regulation of providing a high level of protection for passengers and of ensuring that full account is taken of the requirements of consumer protection in general.

34As observed by the Advocate General at point39 of his Opinion, that interpretation of Article16 of Regulation No261/2004 also makes it possible, as regards the assessment of the same individual situation, to avoid any occurrence of different assessments that are detrimental to the rights of air passengers between, on the one hand, the bodies referred to in Article16(1) of the regulation dealing with individual complaints referred to them and, on the other, the national courts adjudicating on individual actions seeking compensation under Article7 of the regulation.

35Moreover, that interpretation is consistent with the allocation of the roles attributed, respectively, to the bodies referred to in Article16(1) of Regulation No261/2004 and to the national courts, as is apparent from the second sentence of recital22 of the regulation and the Court’s case-law (see, to that effect, judgments in McDonagh, C‑12/11, EU:C:2013:43, paragraph51, and Sousa Rodríguez and Others, C‑83/10, EU:C:2011:652, paragraph44).

36For that reason, in view of those objectives and the discretion enjoyed by Member States in the allocation of the powers with which they intend to endow the bodies referred to in Article16(1) of Regulation No261/2004, as referred to by the Advocate General in point30 of his Opinion, it is open to Member States, in order to remedy inadequate protection for air passengers, to empower the body referred to in Article16(1) of the regulation to adopt measures in response to individual complaints.

37Accordingly, as is apparent from paragraph18 above, the provisions of Regulation No261/2004 are directly applicable in the main proceedings and may therefore be relied on before national courts in disputes between individuals, thus ensuring that air passengers enjoy effective judicial protection.

38It follows from the foregoing that Article16 of Regulation No261/2004 must be interpreted as meaning that, where an individual complaint has been made by a passenger to the body designated by each Member State pursuant to Article16(1) of the regulation following the refusal by an air carrier to pay to the passenger the compensation provided for in Article7(1) of the regulation, that body is not required to take enforcement action against the carrier with a view to compelling it to pay the compensation.

Costs

39Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules:

Article16 of Regulation (EC) No261/2004 of the European Parliament and of the Council of 11February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No295/91, must be interpreted as meaning that, where an individual complaint has been made by a passenger to the body designated by each Member State pursuant to Article16(1) of the regulation following the refusal by an air carrier to pay to the passenger the compensation provided for in Article7(1) of the regulation, that body is not required to take enforcement action against the carrier with a view to compelling it to pay the compensation.

[Signatures]

* Language of the case: Dutch.